Wednesday, April 29, 2015

Switching Seats Because I'm A Woman

by Sherry F. Colb

In my column for this week, I examine a conflict scenario that has been making its way into the news lately, one in which an ultra-Orthodox Jewish man (also known as a "Haredi") asks one or more people on an airplane to switch their seats to enable him to avoid sitting next to a woman, as an accommodation to his religious observance. My column explains the religious doctrinal basis for the religious man's request ("Negiyah"), and I consider the perspectives of both the religious man and the woman in the situation and conclude that his request--though it may seem relatively trivial, particularly given his minority status--is capable of inflicting a lot more harm on the woman than might be apparent at first glance. Having said this, I want to consider in this post how I personally would react to such a request, were a Haredi man to ask me to switch seats so that he would not have to sit next to me on an airplane.

I predict that, in my own case, my answer to the request would depend primarily on two factors, neither of which have that much to do with the issues I identified in my column: First, how important is it for the flight to leave on time? (that is, how costly is the delay that I might occasion by refusing to accommodate the religious man's request?); Second, how does the religious man go about making his request of me?

The first factor is purely practical. If neither I nor the other people on the airplane seem especially stressed out by the possibility that the flight on which we are traveling will arrive at its destination somewhat later than originally scheduled, then that fact would give me the freedom to make my decision on the basis of whether I truly wanted to accommodate this person's request. On the other hand, if I or others on my flight are at risk of missing a connecting flight if we do not leave the gate on time, then I will feel tremendous pressure to do what is necessary to facilitate an on-time departure. Even if I would otherwise be inclined to say no to what I regarded as an offensive request, I might not have the luxury of doing so. By analogy, a parent of a young child who is about to have a temper tantrum in a public place might accommodate the child's unreasonable request (for a candy, for example), rather than stand on principle and create a scene.

In the case of the Haredi requesting a seat change, of course, an airline could require that everyone either sit in his or her assigned seat or vacate the plane. This approach would spare me the pressure of having to accommodate a request I would prefer not to accommodate. It would also, however, potentially implicate the airline in actionable failure to accommodate a religious request, and such a failure could conceivably--if other, similar secular requests are regularly accommodated or perhaps even if they are not--qualify as religious discrimination.

Assume, however, that there is no time pressure. No one on the flight is in much of a hurry, and I have the freedom to decide whether or not to grant the Haredi's request without regard to this extrinsic factor. What do I do?

My inclination is to attend very closely to how the Haredi frames his request to me. I believe that the doctrine of Negiyah itself is objectionable, but I would not necessarily visit the consequences of my belief on every ultra-Orthodox Jewish man who observes the doctrine. Many people--particularly those who are highly devout in their observance--follow the doctrinal requirements of their religions without necessarily endorsing or buying into the philosophical ideology behind a particular doctrine. To put this differently, some ultra-Orthodox Jewish men may not have dedicated themselves unequivocally to the underlying meaning of "Negiyah" and might even find it troubling but nonetheless feel bound by it as an inseparable part of the religious observance that they regard as mandatory and non-negotiable.

Why do I mention these possibilities? Because my inclination to grant a request that I switch seats as an accommodation to an ultra-Orthodox Jewish man's request would increase tremendously if I sensed that he (a) understood that what he was asking of me would quite likely be hurtful and insulting, (b) felt some sense of regret about generating such hurt and insult, and (c) perhaps even recognized the legitimacy of the view that the entire doctrine is fraught with misogyny (although this last of the three is a great deal to ask of someone who has embraced the doctrine as a way of life).

Consider two scenarios:

Scenario One:

Haredi: Excuse me, m'am, but I was assigned by the airline to sit next to you, and you are female. Under Jewish law, sitting next to you would be an "averah," or a sin for me. If you could just switch seats with the gentleman sitting directly behind you, also a window seat, that would solve the problem."

Scenario Two:

Haredi: Excuse me. I'm so sorry to bother you, but I have what will surely sound like a strange request to make of you. I intend no offense at all by this request, but my religion prohibits me from being in physical contact with a woman who is not my wife. Since the seats on this flight are so narrow and close together, my sitting in my assigned seat would place me in violation of that religious prohibition. I realize that this probably sounds peculiar to you, but I am hoping that you will nonetheless do me an enormous favor and switch seats with one of the men seated on this flight. I would be so grateful if you would agree to do this, and I'd be glad to make the inquiries if there is a particular seat to which you would be willing to switch. Please forgive me for this imposition, particularly since we are strangers.

If I faced the situation in scenario two, I would almost certainly grant his request (unless there were some other compelling reason for me to refuse). By framing it as he did, he makes it clear that he understands that he is not entitled to have me move, notwithstanding his religious obligation. He also makes clear his recognition of my own perspective and the fact that his request will probably sound strange to me. He communicates effectively that his request comes entirely from a need that he has, and he makes clear that I am not socially or morally obliged to fulfill that need and will do so, if I do, only because I would like to help him out as a favor.

Facing the first scenario, by contrast, I would be sorely tempted to say no (or, at the very least, to attempt to educate him about how he is coming across as a prelude to considering saying yes). By contrast to the man in the second scenario, this man behaves as though I am under an obligation to solve his problem--the problem that arises because his religion makes demands of him that have run into conflict with a social context in which men and women are integrated rather than segregated. He accordingly views me as an obstacle to his observance rather than as someone with whom he can engage productively to try to find a solution to a problem that I had no hand in creating and for which I am not responsible.

The fact that I would react so differently to the two requests highlights the importance of how we communicate with one another. It may sometimes seem as though the important thing, when communicating, is simple content, especially when we converse online and it is challenging to remember that there is someone with feelings, needs, and a perspective on the other end of the cyberline. But the reality is that despite all of the principles that might drive me either to agree or to refuse to grant a request that is itself fraught with meaning, the deciding factor may very well be the style and tone of the communication. If it is non-violent, considerate, and conscious of the perspective on the other side of the conversation, I will be inclined to say yes.

19 comments:

Thanks for this post, it's very interesting. I think this point is often missed in discussions of these kinds of cases, where people try to find a grand principle to understand all cases.

I think you're response, and the Haredi in the second scenario, exemplify something pretty central to any efforts in multiculturalism, which is just doing our best to kindly make things work. We're not going to make it otherwise.

One point of confusion I have with the post is your claim that there might be a plane on which passengers are less than completely stressed about leaving on time. I've never seen such a plane, and doubt I ever will.

This is a very interesting post, if for no other reason that it seems to be original, posing a situation that I have not encountered before in a discussion. But I would disagree with Ms. Colb’s conclusion and assert that regardless of how she was approached about changing her seat in the situation she describes, she would do so. I think she would conclude that the burden of the accommodation was small compared to the benefit to the individual requesting it and that even if he communicated his request in highly condescending and offensive manner she would make an objective decision and accept his request.

More importantly though her post raises the question of what is reasonable accommodation and to what extent, if any do those asking for reasonable accommodation have an obligation to do so in way that recognizes that they are asking others to accommodate them. And I think this is a large part of the problem with the issue currently in the news, same sex marriage and the right to discriminate against the gay and lesbian community.

Those who oppose this on religious grounds, those who argue that allowing SSM and creating protection for the gay and lesbian individuals and couples results in a violation of their religious freedom have it backwards. They are not being discriminated against; they are free to not marry someone of the same gender. Instead they are instead asking others to accommodate them, asking others to put aside their beliefs of decency and compassion to accommodate prejudice that has grown out of misguided religious beliefs. And as Ms. Colb points out in her example of the airplane seat, that they do so in an offensive manner only reinforces the inclination to deny them that accommodation, to say no, we are not going to allow a prejudicial and bigoted set of beliefs to be imposed on those of us who do not have those beliefs.

First, the original request phrasing, while dramatically less than ideal, was at a minimum polite and, to a lesser extent, acknowledged the problem as his problem, even though it showed an expectation that you would help him solve it. I would probably be inclined to honor such a request, with the caveat that I would expect him to find and get consent from the person with whom I was expected to switch.

Second, were I him in this scenario, I would use a far simpler algorithm. I would intentionally get either a window or more likely an aisle seat (and potentially pay extra to do so.) Once on the airplane and finding myself seated next to a female, I would find another passenger (male or female, doesn't matter) in a middle seat that is seated between two men. I would then ask that passenger if they would like to switch with me. Most passengers who are not seated with a group would gladly agree, as this would result in what is almost universally considered an improvement for them. If the requester was seated in a middle or aisle seat, I would be inclined to point this out to them.

I agree with your general sentiment about willingness to honor religious requests, even those you disagree with, when they are made politely and humbly.

As an aside, Prof. Colb, my guess is that you are a sufficiently polite person that it's hard to imagine what a truly impolite request would look like, or at least to imagine responding positively to one. Yet, your concern about time and politeness to other passengers would apply even for truly impolite or rude requests.

I have a few thoughts on this (even setting aside the schadenfreude whenever religion causes a practitioner harm).

My first thought is that he can solve his own ridiculous problem by buying a seat in business/first. No matter how nice he is asking, it is nuts to accommodate him.

My second thought goes to other solutions as well. I personally can't stand touching strangers on a plane. I have no religious reasons for it, I just don't like it and I don't like it enough that when I cannot get business/first I have done such things as stand for all but take-off landing, scrunched over as far for the person next to me, etc. The reality is that I am a 6-foot, 200lb person and even with small seats I can manage to restrict myself to my seat. You are a small person and are not going to be encroaching the religious nut's seat, so all he needs to do to obey his religion is not encroach yours.

Finally, if he really does not find any of those solutions a possibility, he can get something like this: http://createaspace.net/

If that won't do it, there are other more impressive (e.g. bigger) options.

A passenger such as the one you discuss has so many options available to him that do not involve bringing you into his religious insanity that you are not really accommodating his religion so much as accommodating his feeling of privilege that other people should be solving his problems.

Yes, Professor. Thank You. you have articulated what I so often have said to Others, albeit in different form: when We disagree, I do not object to the disagreement per se but to whether or not One seems disagreeable and while, in My experience, Few deliberately seek out being disagreeable, sometimes We can too easily come across in such a fashion. Thank You again.

I'm not sure I buy into the request at all, polite or not. You mentioned that the tenor of the now boarded passengers would affect whether you felt like you could actually say/do what you want. You ignore the fact that his questioning you in the first place is his own decision to ignore the mood of the crowd in favor of his own preference. He, simply by requesting (and, assuming his continued protestation of the matter should you say no), has caused delay and consternation among the now agitated villagers. Why should you be put in a position to consider the very thing he clearly ignores?

This is especially vexing if he is initially chose a middle seat. That means he's greatly increased the chance that this confrontation will occur.

It's not unlike when a couple asks if anyone is willing to move so they can better handle a small child. Sure, I may empathize with them and offer my seat, but in no way am I to be made to feel obligated to do so. There isn't even any calculus that goes into that decision. I like my aisle seat and no, I will remain in my seat and the parents must deal with that.

There seems to be substantially more hostility to the hypothetical request than I would have expected, although as the product of an orthodox Jewish family my view may be colored.

Look

1. All that has happened in this hypothetical is that an individual has asked to exchange seats with another individual and the person making the request has a reason for doing so.

2. If the person does not wish to change seats all he or she needs to do so is to say no, hopefully in a pleasant manner even if the request was made in a way that was offensive. There is no downside to civility. End of story.

3. The nature our pluralistic society is that when an accommodation can be made without unduly burdening those who are making the accommodation it should be done. Growing up my school district did not serve meat on Fridays, no problem. Christmas is a federal holiday, fine. In God We Trust is on coins, doesn’t affect me. A manger scene on city property, won’t affect my beliefs or interfere with my practice of my religion.

4. We serve a higher purpose when we do things we are not obligated to do, but do so anyway out of a desire to live in harmony with others.

The real problem is not accommodation as described by Ms. Colb, the real problem is those who want an accommodation in order to unduly impose their religious beliefs on others. This includes those who would deny contraceptive benefits to their employees, those who would deny the dignity of marriage to same sex couples, those who insist on vocal prayer at a function where attendance is de facto or de jure required and the like. This is not a Christian phenomena, the behavior of some of the orthodox community in Israel is deplorable.

It is a belief that accommodation means one must allow imposition of religion, that individuals who are not of that religion do not have the choice as is the case in the example in the post that is the threat to religious freedom in America. And given the horrific torture, murder and violence in the name of religion that has taken place in the last 2,000 years and continues to take place today, that conservatives use and promote religious differences for partisan political gain is truly horrendous. That is where the outrage should be, not over a request by a person to change seats on an airplane.

Some people have strongly negative responses to "religion" in general.

Let it be noted that Prof. Colb in her Verdict essay explains her own religious background. It provides some useful context.

I don't really feel a need to label religion or certain religious beliefs as negatively as some. I think too many people have various views, some fairly strange, to make that productive. As long as the people follow certain respectful rules and don't burden third parties. Too many supporters of gays etc. have religious views to in effect show disdain of religion. It seems a bit gratuitous. But, if someone disagrees, fine.

There are various ways for people to adapt to the world when it runs against their views, religious or otherwise. I do think respectfully asking a person to move here is acceptable. As to being able to avoid touching, I find that a bit unlikely in certain cases. Basically, I find I repeatedly touch the person next to me while traveling. It's a glancing touch, of course, but it happens. As to use of a special seat separator, perhaps that might work. It might not in certain cases.

I'd like to respond to David Ricardo's comment about religious accommodations more generally.

I am very interested in the question, asked by many religious business owners, of how much accommodation they should be given to practice their religious obligation not to support gay marriage.

In my view there is a straightforward rule, subject to some exceptions. The rule is that individuals should generally be allowed to choose WHAT products and services they sell, but not WHO they do business with.

That people should be allowed to choose WHAT products and services they sell is the default state in a free society. It means a baker that can choose to sell cakes but not cookies. Furthermore, it means that as a private citizen, they can choose to sell cakes with messages they agree with, but not cakes with messages they disagree with.

The second part of the rule is that a business cannot decide WHO that person will do business with. For a baker, this means that they cannot decide not to sell a cake to an equivalent customer who they don't like, or even who they consider sinful. The legislature enacts laws defining exactly what types of customers must be considered equivalent.

Many professions have both a speech component and a non-speech component. An obvious example would be a baker baking a cake and writing a message on it. The cake itself contains only a minimal speech component, but the written message is undeniably speech. Freedom of speech, protected by the first amendment, puts a restriction on both the legislature's ability to restrict WHAT people sell and potentially on their ability to control WHO people sell to. For a baker, the result is clear: if they want to sell cakes, they must sell cakes to all buyers. However, they need not write every message on a cake that a buyer requests. It is sufficient to sell the buyer the additional frosting and allow the buyer to write the message.

All of this brings us to perhaps the most troubling case where all of these principles collide: Elane Photography v. Willock. Elane Photography is an incredibly difficult case because it's hard to distinguish the act of taking a photograph from the content of that photograph. Does this mean that a photographer can be required to take photos at a wedding, but not ones that portray the wedding in a positive light?

Normally we would say that a baker who intentionally bakes a bad tasting cake for people they wish to discriminate against is not actually selling the same product. However, is the same true of a well-taken (good lighting, in-focus) photograph that is timed such that it makes the wedding look sad rather than happy?

I see two ways to go here that meet all the rules, neither one particularly satisfying. One option is to say that photography and other exclusively artistic or journalistic endeavors are "special" and that we should not hold people in these businesses to the same "who you do business with" restrictions we hold people in other businesses when the restriction necessarily creates compelled speech. The other option is that we allow these businesses to be compelled to do business with others, but do not regulate the content of that speech. This, in effect, would mean that you can hire any photographer, but the the photographer can fulfil their legal obligation by telling the customer beforehand that they are not going to like the results, and then delivering technically competent pictures that nevertheless fail to send the message that the customer wanted.

Since, in practice, these are really the same, I tend to favor the former option of treating artistic and journalistic professions as special. It is less likely to result in a kind of economic attack where a customer hires a photographer and then sues them in front of a jury for bad results, in a case where the jury is unlikely to understand the nuances of why they are legitimately compelled by their religion to take "bad" pictures.

I'm with Paul. Look, what would you say to someone who very nicely asked whether you could help accommodate the religious mandate that he not sit next to someone who is black? I hope you would tell this person that he had the option of moving to a racist haven, but that if he wants to live in our society, he is going to have to accept the fact that we do not accommodate racist preferences, whether religiously motivated or not. I see no difference between the refusal to tolerate religious racism and the refusal to tolerate religious sexism. Let us not forget that sexism is built into the core of Hasidic Judaism. The practice to which you refer is not isolated. Women are dependent on their husbands for a religious divorce. Women are made to sit separately from men in synagogue, without being eligible for positions of religious authority. And on and on. No, this man cannot eat his cake and have it too. He must choose whether to live with us or live in his own sexist enclave.

I understand the opposition, upon reflection, but still think the request probably okay.

The level of careful asking offered suggests a level of respect not involved in the last comment. Separate is not equal, yes, but especially for someone mostly concerned with ritual, if you have to go so far in asking the woman to move (and would not an Orthodox women do the same?), there seems to be respect.

I agree - the discussion of this matter ignores the obvious response. "If my presence disturbs you, I suggest you ask the flight attendant to find you another seat." It is ridiculous for him to assume the woman must move, she is under no reasonable obligation to do anything.